3 Ways to Rule on the Voting Rights Act

The Supreme Court is expected to rule next week on Section 5 of the landmark Voting Rights Act of 1965, which requires certain states with a history of discrimination to get federal approval for any changes to voting laws.

The ruling could have wide impact on how states such as Texas apportion their congressional districts, among other state laws governing the most basic franchise of citizenship.

According to election law experts from both parties, here are the three most likely ways the court decision could come down:

1. Keep the status quo

The court can uphold the Section 5 requirement as written. The covered jurisdictions would have to continue to seek approval from the national government, either in federal court or from the Department of Justice, before changing their voting laws, including congressional maps redrawn during the decennial redistricting process. However, these jurisdictions can “bail out” of the pre-clearance process by going to court under the current law.

2. Strike it down

In this case, the justices would rule the provision unconstitutional, most likely because it violates the equal protection clause or states’ rights. Privately, most of the experts interviewed — Democrats and Republicans — see this as the most likely outcome.

They argue that a high court ruling from earlier this week paved the way for the justices to strike down Section 5. Justice Antonin Scalia authored the 7-2 opinion ruling that states may not ask for proof of citizenship before registering people to vote. Voting law experts speculated that this would give the court leeway to strike down the full law next week in what is expected to be a controversial ruling.

3. Strike down part of Section 5

The court could rule that part of the pre-clearance guidelines are unconstitutional, most likely the coverage formula that determines which states must get the federal OK under Section 5. In this case, the court could rule that either no state or every state should submit to federal pre-clearance.

Or, the courts could ask Congress to come up with a new formula to decide which states should be covered by Section 5. In this scenario, Congress would probably have to come up with a new system to determine the covered jurisdictions based on current data. A contentious battle would follow on Capitol Hill as lawmakers fought to ensure their states are or aren’t burdened by federal mandate.

As a result, it’s hard to see how Congress would pass anything along these lines, rendering Section 5 unenforceable.